Duncan v. Lawrence — 6 Abb. Pr. 304

Majority

p. 304

DUNCAN a. LAWRENCE.

New York Superior Court; General Term,

May, 1858.

Headnote

Pleading.—Denial of Knowledge ob Infobmation sufficient ■ TO FOBM A BELIEF.

When, in an action by an indorsee of a promissory note against the maker, all the allegations of the complaint employed to show the title and possession of the note to be in the plaintiff, are put at issue by the answer, the answer is a sufficient pleading, although it puts each of such allegations at issue by an averment that the defendant has not any knowledge or information thereof sufficient to form a belief.*

* The contrary rule is held in the New York Common Pleas, Kamlah a. Salter, Ante, 226.

Appeal by defendants from an order that the plaintiffs have judgment on account of the frivolousness of the answer.

The complaint stated that the defendants were partners, and on the 24th of August, 1857, in their firm name of S. & T. Lawrence & Co., made a note of that date, payable to their own •order; and sets forth a copy of the note, and then alleged that they “ indorsed the said note in writing, in their said firm name of S. &'T. Lawrence & Co., in blank, and that the said note was afterwards, and before its maturity, duly transferred and delivered, for value, to the said plaintiffs, then and still being bankers and copartners, carrying on business at the city of New York, under the firm name of Duncan, Sherman & Co., and that the said plaintiffs, before the maturity of said note, became and still are the lawful owners and holders thereof for valuethat the note is past due and unpaid, and prayed judgment for the amount due, including interest.

The defendants, in their answer, stated that “ they have no knowledge or information sufficient to form a belief whether the plaintiffs now compose or ever did compose the copartnership or firm of Duncan, Sherman & Co., or whether the plaintiffs are or ever were copartners, or whether the promissory note set forth in the complaint was ever at any time transferred or delivered to plaintiffs, or whether the plaintiffs before the maturity of said

p. 305

note, or at any time became, or now are, the lawful owners or holders of said note.”

The complaint and answer were both verified.

The plaintiffs moved at special term for judgment, on account of the frivolousness of the answer, and the motion Was granted. The defendants appealed.

A. R. Dyett, for appellants.

Jeremiah Larocque, for respondents.

Bosworth, J. The complaint does not state that the defendants transferred or delivered the note to the plaintiffs.

The Code permits any allegation in a complaint to be put at issue by an answer which states that the defendant has not “ any knowledge or information thereof sufficient to form a belief.” (Code, § 149, subd. 1.)

All the allegations in the complaint, which are inserted to show title to the note to be in the plaintiffs, are severally put at issue by an answer in that form. They are thus as directly and •absolutely controverted, according to the present rules of pleading, as if the truth of each had been expressly denied.. The plaintiffs, on the trial of this action, cannot recover without first giving evidence sufficient to establish, prima fade, that the note has been delivered to and is held by them.

When, in an action by an indorsee of a promissory note, the answer puts at issue, in a form prescribed by the Code, all the allegations employed in a complaint to show the title and possession of the note to be in the plaintiffs, it is not only not frivolous, but it is a sufficient pleading. (Metropolitan Bank a. Lord, 4 Duer, 630 .)

The answer in this action is, therefore, sufficient. It raises a material issue, the truth of which the plaintifis must establish, in • order to recover.

The order appealed from must, therefore, be reversed, and $10, the costs of the appeal, and the costs of opposing the motion for judgment, must abide the event of the action.

Footnotes

* Present, Bosworth, Hoffman, Slosson, and Woodruff, JJ.